Neal Cary, Chair of the Board of Directors of American Atheists, announced last week the election by the board of Dave Silverman as the organization’s new president.

Silverman, 44, earned his BA from BrandeisUniversity and his MBA from PennState. A Massachusetts native, he moved to NJ in 1992 and has been married to magazine publisher Hildy Silverman (not an atheist) for 19 years. They have a daughter who, having been given a choice, is an out-and-proud atheist.

Silverman has been with the organization since 1996, holding positions of NJ State Director, Communications Director, National Spokesperson, Board Member, and Vice President. He hosts the Atheist Viewpoint TV program, blogs on the NoGodBlog, has appeared on numerous public affairs and news programs, and has debated religious apologists across the country.

Silverman noted with regret that he never met Madalyn Murray O’Hair, founder of American Atheists and a plaintiff in the historic 1963 Supreme Court case to remove prayer and bible recitation from public schools. “I’m committed to remembering and honoring the important principles Madalyn represented. We’re re-committing American Atheists to a more visible role for nonbelievers in the fight for state-church separation and public policy, as well as to more activism.”

Silverman succeeds Dr. Ed Buckner, a resident of Georgia, who served as President for the last two years.

“My tenure as President has been filled with meeting atheists who are easily among the finest people I’ve ever met,” said Buckner. “I am convinced that the future of atheism and of this organization is bright. Our new President, David Silverman, is the key reason for my optimism.”

Buckner continued: “I would urge all atheists to support him, but I’m pretty sure most of us already do. I happen to know with certainty that the board had a number of quite well qualified, interesting candidates, from both inside and outside the organization–and I think that many of those could lead us well. David Silverman was, despite that fierce competition, an easy choice. His dynamic, energetic, creative, fun-loving, intelligent approach to this organization and to atheism will take us far and take us there quickly.”

Dave Silverman begins his service as president next week, and is available now for interviews with media, in person or by telephone.

However many times I don my wig and gown, ready to conduct a trial, one thing still surprises me. It’s the amount that I find myself arguing with the opposing barrister in front of an increasingly exasperated judge about who has the burden of proving their case. To be fair, most of the time it’s pretty obvious. This is because the key principle in the English courts is that if you assert something, it is up to you to prove it. After all, it’s famously difficult to prove a negative – to prove that you didn’t tamper with the electricity meter, that your house isn’t haunted, that you weren’t flirting with the woman next door.

Likewise those who debate the question of God’s existence can find that they hardly get started before they become stuck on the question of who bears the burden of proof. If you apply the approach of the courts, it may appear to be quite straight forward: If a believer asserts that there is a god, the burden must be on him to prove it. The philosopher Bertrand Russell famously illustrated this by saying that if he believed that a flying teapot orbited the earth, he could hardly expect that the burden should be on others to disprove it.

Click for larger version. Image:burdenofproof.co.uk

So how do believers justify their claim that it is the atheists who must assume the burden of proof by establishing that there is no god? The answer is by adopting another principle which is often applied in English courts.

Sometimes the courts will reverse the burden of proof where the evidence in favour of a proposition is so suggestive, that whoever denies it is required to prove their case. For instance, imagine that a little old granny mortgages her house so that she can borrow a huge sum of money to fund her adult grandson’s illegal drug-dealing business. In any court proceedings, the lady wouldn’t have to prove that her grandson exerted undue influence on her. Rather the circumstances are so suggestive that the court would require him to prove that he did not force her hand.

Many Christians apply the same kind of argument to try to reverse the burden of proof. In particular they believe that the world is such a wondrous place that it is inconceivable that a god has not created it. Just look around you, they say. How can you say that there isn’t a god who created all of this beauty?

The problem with this argument is that whether the world and the universe are so impressive as to postulate a creator is an instinctive reaction issue. What I mean by this is that as soon as someone makes this point, you will instinctively agree or disagree. And no amount of argument will change your mind. An atheist will find the argument to be faintly ridiculous. Yet most dedicated believers think that the solar system is so impressive that it is obvious that God must have created it; and that an atheist who says otherwise is being disingenuous, arguing against what she knows deep down to be true.

Why do believers think this? It is partly because the bible tells them that it’s true. According to Psalm 19 v. 1, “The heavens declare the glory of God; the skies declare His handiwork.” In a similar vein, Psalm 14 v. 1 rather provocatively proclaims, “The fool hath said in his heart ‘There is no God’”. When their holy book – the Word of God, no less – tells believers these things, it’s hardly a surprise that they embrace them and consider that God’s existence falls into the category of the blindingly obvious. A believer would be doubting God’s Word if he accepted that the creator’s existence doesn’t necessarily become self-evident no matter how long someone stares up at the moon.

But believers cannot justify trying to transfer the burden of proof in this way. Some people will look up at the skies and conclude that only a god of some sort could have created them. Even Thomas Paine thought that. But if it wasn’t for these bold biblical proclamations, the experience of most believers would surely tell them that it is perfectly clear that not everyone is persuaded of God’s existence so easily. In fact, if the bible hadn’t made the claim in the first place, the idea would surely beggar belief even to most believers. So, can one or two lines in the bible justify the reversal of the burden of proof?

If we are trying to prove whether there is a god, it is not just god’s existence which is on trial; it is also the bible. And so, an exhortation in that very bible cannot be validly advanced to influence where the burden of proof should lie.

And so the position must remain: If you say that there is a god, prove it.

When the cosmologist Carl Sagan was asked whether he was an atheist he replied, “An atheist has to know a lot more than I know.” Bearing in mind that Isaac Asimov described Sagan as one of only two people he had ever met whose intellect surpassed his own, the bar appears to be raised quite high in order for anyone to assume the mantle of atheism. Yet that probably misses the point. Most atheists don’t believe that they know so much that they can say for sure that there isn’t a single fact which can demonstrate God’s existence. They certainly don’t need to think that. All that an atheist needs to say is that so far, believers have not discharged the burden of proof which is upon them to show that the celestial being in whom they believe does in fact exist.

Besides, spare a thought for the Charismatic Christian phenomenon of speaking in tongues. The New Testament explains that it is the Holy Spirit – the oft-forgotten member of the Holy Trinity – who gifts the ability to praise God by speaking in the tongues of angels. He supposedly grants this spiritual gift because earthly languages are too limited in their vocabulary to adequately express God’s wondrous majesty. I find it difficult to imagine a Charismatic Christian, palms turned heavenward and eyes tight shut, praising God in the tongues of angels – and crucially not having a clue whether God exists but feeling that the burden of proof should be on atheists.

The final question is whether believers have discharged the burden of proving that there is a god. But that’s a question for a different day.

This Wednesday will be the 10th anniversary of a bizarre and regrettable moment in American history: the enactment of the “Religious Land Use and Institutionalized Persons Act of 2000,” or “RLUIPA.”

RLUIPA’s origins trace back to an earlier law, called the “Religious Freedom Restoration Act of 1993,” or “RFRA.” The name itself raises an eyebrow. What was being restored? Haven’t we always had religious freedom? Especially in 1993, at the peak of Jerry Falwell’s Moral Majority? In fact we did, but that did not stop politicians from wanting to play games. Democrats, then as now, envied the power of the religious right, and then as now deluded themselves into thinking they could win over a fair share of evangelical voters by sucking up to organized religion.

A 1990 Supreme Court case called Employment Division vs. Smith gave them the opportunity they sought. Two employees at an Oregon drug rehab clinic, of all places, decided to experiment with using an illegal drug. They were caught, and fired; then they applied for unemployment benefits. The agency turned them down, because of a straightforward rule against using the state’s limited unemployment funds for persons who lost their jobs because of their own criminal activity. “Ah,” said the ex-employees, “but we’re different. We used the drug in a ‘religious ceremony.’ So the rules that apply to everyone else shouldn’t apply to us, because God experts should get special treatment.”

The Court, in its long-winded way, decided that no, they shouldn’t get special treatment. Freedom of religion meant that a particular set of religious beliefs couldn’t be singled out for harsh treatment, but it did not mean that government was prevented from enforcing a religiously neutral law that applies to everyone equally, like a speed limit, or a law against using hallucinogenic drugs. The Court added that if religious users of particular drugs wanted to be exempt from the generally applicable rules, they could try to get the Congress to give them an exception, as in fact it later did; but this was a job for elected officials, not the courts.

To hear the howl that went up from the religious right, you would think that Stalin and Mao had taken over the American government. This was “The End Of Religion As We Know It.” So shortly after the Democrats took control of the White House in 1993, Democratic Sen. Ted Kennedy teamed with Republican Sen. Orrin Hatch to ram through one of the most breathtaking statutes in our nation’s history. RFRA, to put it bluntly, invalidated every federal, state, and local law in the country as it applied to anything claiming to be a practice of religion, unless the government could demonstrate a “compelling interest” in its enforcement. For example, it would (probably) be ok for a government to enforce murder laws against the religious practice of human sacrifice. But if the world isn’t going to come crashing down because a couple of government employees get high in their spare time, then they can blithely ignore the laws that apply to everyone else by claiming that they are communing with God.

RFRA sailed through the Congress with virtually no debate and no opposition. With both Kennedy and Hatch assuring their parties that ingratiating the God experts was politically clever, no one paid the slightest attention to whether there was any real loss of religious freedom that needed to be restored, or what the impact of such an extraordinarily broad law might be. It didn’t take long to find out.

St. Peter's Church, BoerneTX

The city of Boerne, Texas, just outside of San Antonio, had a historic preservation law restricting what owners could do with their properties in a designated historic district. These laws exist all over the country, and make our urban areas far more interesting, attractive, and livable spaces then they would be if a gas station were allowed on every single corner. For those of us who live inside one of these districts, the restrictions can be a pain; if I tried to paint my house green, I would be shot. But the overall effect is worth it, and almost no one wants these laws repealed. The Archbishop of San Antonio, though, realized that RFRA meant he was above the law, because he knows all about God. So when he decided he could make more money by redoing the historic little mission church at the heart of the Boerne historic district in modern megachurch style, he wasn’t going to let mere laws of humans stay the hand of God.

The case made it all the way to the Supreme Court, where a funny thing happened. Students of federalism know that since the 1930s, the Court has had a near-perfect record of allowing Congress to assert its authority over the states, making the whole idea of “state’s rights” appear to be a relic of the Civil War. But RFRA went too far; the Court in 1997 held that nothing in the Constitution authorized Congress to invalidate every single state law as it applied to religion, so that the city of Boerne was able to apply the same inconvenient historic preservation laws to the Catholic Church as it applied to everyone else.

In Boerne, the net result of this (aside from a ton of money being paid to lawyers) was that a negotiation ensued between the city and the landowner – exactly like the give-and-take that occurs every day in zoning exception cases across America. The city wanted to preserve the historic appearance of the square, and the church wanted more space. So a deal was struck in which the façade of the Church remained intact, while more space was added in the back. Everyone got pretty much what they needed, without the grandstanding politicians in Washington being involved. Amazing.

Naturally, those politicians were angry on the one hand, and conniving on the other: here was another golden opportunity to tell the churches how much we love them! Thus was born RLUIPA, ten years ago this Wednesday, by unanimous consent in both houses of Congress. The idea was to narrow RFRA just enough to squeeze through the cracks in the Boerne opinion, in part by limiting it to land use and prisoner rights cases. Did they succeed? We don’t know, at least with regard to the land use portion, because the Court has steadfastly refused to hear any case challenging the constitutionality of this part of RLUIPA – which has exactly the same effect as allowing it to stand.

A nice example of RLUIPA at work is an ongoing battle in Los Angeles between an Orthodox Jewish congregation and the residents of a sleepy residential neighborhood where it wanted to plunk a busy synagogue. The residents, who were primarily concerned about parking and traffic on their children’s day of play, were accused of being the worst kind of anti-Semitic bigots, with Jewish leaders outside of L.A. who never met them accusing them of “hate.” Before RLUIPA was passed, the city stuck to its guns, and refused to allow Jews or any other religious group to disrupt the neighborhood. When its lawyers read the new law, though, they reversed course, and agreed to a settlement giving the congregation most of what it wanted. They surrendered so quickly, in fact, that the homeowners association sued the city and won, on the grounds that they weren’t even allowed to express their views at a hearing as required by city law. Ten years later, lawyers are still sending their kids to college off the fees they are earning in this case, which is still not resolved.

To be sure, as noted in a recent UCLA Law Review article, the effects of RLUIPA have not been as draconian as originally feared, as courts have insisted on applying common sense. When a Cheyenne, Wyoming Methodist Church decided that God wanted them to open a daycare center to operate throughout the week, a federal court decided that wasn’t protected by RLUIPA, and would be subject to the same rules as anyone else wanting to open a daycare center in the neighborhood. The trouble with RLUIPA is that the decided cases are only the tip of the iceberg, because most local governments and homeowners’ associations are afraid to attempt to assert their rights. Their fear is well-founded, because RLUIPA provides that if the church prevails on even a single point in litigation, the government has to pay the church’s lawyers as well as its own lawyers. But it’s a one-way street; if the church loses, it does not have to pay for the government’s lawyers.

Land use issues typically boil down to a negotiation, as happened in Boerne. The real effect of RLUIPA is to put more than a thumb on the scale in the churches’ favor during this process; it’s more like two elbows on the scale. Just as we saw in the Salem, Virginia case a few weeks ago, the mere threat of an RLUIPA litigation is enough to cow most zoning authorities into meek submission. Bottom line: rules are for schmucks; God experts get to do what they want.